Mola Taluari v Lagayu Hewa People’s Association Inc

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 10 June 2016
• Citation: (2016) N6363
• Court: National Court
• Year: 2016
• Judgement Number: N6363

Full : OS (COMM) 128 of 2016; Mola Taluari, Rex Hibuya, Thomas Ngouya, Kiwai Lapa, Agiru Hini Kari – for themselves and on behalf of the affected Resource Owners/Landowners of Rorua, Ragana & Homoye Clans v Lagayu Hewa People’s Association Incorporated and Harmony Gold (PNG) Exploration Limited and the Mineral Resources Authority (MRA) and the Department of Mining and the Independent State of Papua New Guinea (2016) N6363

National Court: Hartshorn J

Judgment Delivered: 10 June 2016

N6363

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS (COMM) 128 of 2016

BETWEEN

MOLA TALUARI, REX HIBUYA, THOMAS NGOUYA,

KIWAI LAPA, AGIRU HINI KARI – For themselves and

on behalf of the affected Resource Owners/Landowners of

RORUA, RAGANA & HOMOYE CLANS

Plaintiffs

AND

LAGAYU HEWA PEOPLE’S ASSOCIATION

INCORPORATED

First Defendant

AND

HARMONY GOLD (PNG) EXPLORATION

LIMITED

Second Defendant

AND

THE MINERAL RESOURCES AUTHORITY

(MRA)

Third Defendant

AND

THE DEPARTMENT OF MINING

Fourth Defendant

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fifth Defendant

Waigani: Hartshorn J.

2016: 7th, 10th June

Application to dismiss proceeding

PNG Cases cited:

Avia Aihi v. The State (1981) PNGLR 81

Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175

Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8

Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977

Kerry Lerro v. Stagg & Ors (2006) N3050

Karulaka Maure v. National Forests Authority (2014) N5875

Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107

Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007

National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Placer Dome (PNG) Ltd v. Yako (2011) N4691

Puri Ruing v. Allan Marat (2012) N4672

Ronny Wabia v. BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8

The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438

Tender Wak v. John Wia (2008) N3356

Takori v.Yagari & Ors (2008) SC905

Thomas Taiya Ambi v. Exxon Mobil Ltd (2012) N4844

Overseas case

The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921]

Counsel:

Mr. L. Agilo, for the Plaintiffs

Mr. J. Bokomi, for the First Defendant

Mr. I. R. Shepherd, for the Second Defendant

10th June 2016

1. HARTSHORN J: This is a decision on an application to dismiss this proceeding. The application is made by the second defendant, supported by the first defendant and is opposed by the plaintiffs. The application is made pursuant to Order 12 Rule 40(1) (a), (b) or (c) National Court Rules, s.155 (4) Constitution and the inherent jurisdiction of this court.

Background

2. The five persons named as plaintiffs are described as representing themselves and affected Resource Owners/Landowners of three named clans in an area referred to as the Mt. Kili Teke Prospective Licence Area (Mt. Kili Teke).This area is described as being within an area covered by Exploration Licence 2310 (EL 2310) in Hela province.

3. In their originating summons that commenced this proceeding, the first substantive relief that is sought is for a declaration that the first defendant, the Lagayu Hewa People’s Association Incorporated (LHPA), does not represent them. Various orders are then sought. The first of which is to the effect that certain agreements entered into by LHPA with the second defendant, Harmony Gold (PNG) Exploration Limited (Harmony), in respect of EL 2310 are defective and unlawful. The remaining orders seek to prevent the other defendants from entering into agreements with LHPA in respect of EL 2310 as to landowner or plaintiff interests, to “compel” LHPA to produce details of money received and for all of the defendants apart from LHPA to work with the plaintiffs.

This application

4. Harmony submits that this proceeding should be dismissed as amongst others:

a) The orders sought for mandamus in paragraphs 4 and 5 of the originating summons can only be obtained in an application for judicial review. Order 16 Rule 1(1) National Court Rules makes it mandatory for applications for writs of mandamus to be made pursuant to Order 16. This proceeding is not a judicial review proceeding and no application for leave for judicial review has been made. Consequently this part of the originating summons is incompetent;

b) This court does not have jurisdiction and no jurisdiction is cited in regard to the declaration sought. In any event what is sought by declaration is a question of fact;

c) As to paragraphs 2 and 3 of the originating summons, by alleging that LHPA does not represent the Plaintiffs’ interests as to EL 2130, as the Plaintiffs’ are claiming that they are the principal landowners of Mt. Kili Teke, the plaintiffs’ are raising a dispute as to the ownership of customary land. This court does not have the jurisdiction to determine such disputes.

5. The Plaintiffs’ submit that this proceeding should not be dismissed as amongst others:

a) This proceeding is concerned with amongst others, a dispute over the ownership of customary land and the entitlement to certain funds that are for the benefit of landowners;

b) This court does have jurisdiction under s. 155(4) Constitutions and the ADR Rules to determine customary land disputes.

Law

6. As to s. 155(4) Constitutions, it is settled law that it is only to be relied upon to protect the primary rights of parties in the absence of other relevant law. In addition, s. 155(4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules: Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317 per Injia DCJ (as he then was). Consequently, as the second defendant is able to have recourse to Order 12 Rule 40 National Court Rules, there is not an absence of other relevant law and so I will not consider s. 155(4) Constitution further in regard to this court’s jurisdiction to dismiss the proceeding.

Order 12 Rule 40 National Court Rules

7. There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40 is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under...